MADISON, Wisc. — The Wisconsin Supreme Court took up a separation of powers dispute Wednesday in a bid by Democratic Governor Tony Evers to cut through Republican lawmakers’ hold on administrative appropriations.
At issue were a handful of statutes granting various legislative committees veto power over a number of expenditures and rules by the state Department of Natural Resources, Department of Safety and Professional Services and the University of Wisconsin.
Recently, Republican majorities in the state House and Senate have used that power to block a number of executive actions, including acquisition of land by the DNR and pay raises for public university employees.
Speaker Robin Vos, who also co-chairs the Joint Committee on Employment Relations, has said he plans to hold up statutory pay raises for about 35,500 University of Wisconsin System employees until the university either cuts its positions dedicated to diversity, equity and inclusion or gives up its authority to create new positions altogether.
Committee vetoes are also stalling an update to Wisconsin’s standards for new commercial buildings and its ethical standards for a number of mental health professionals.
Evers, joined by the administrative departments affected by the vetoes, filed suit in October against a group of legislators including Vos.
On Tuesday, observed by a class of Milwaukee high school students, the Wisconsin Supreme Court heard both sides predict catastrophic consequences should the other one win. But the justices questioned whether either party had limitations in mind for their envisioned balance of powers.
“The Legislature creates the law, sets out statutory criteria that the executive branch must use, it may appropriate the money. But after that, it’s done,” assistant attorney general Colin Roth told the seven-judge panel.
“You’ll see that the legislative branch maintains a significant amount of control” over the administrative state, he said — like the power to conduct audits, amend or narrow statutes and confirmation department heads.
But after-the-fact demands on designated appropriations, he argued, aren’t among the Legislature's legal means to curb executive power.
Arguing on behalf of Vos and his fellow legislators, Misha Tseytlin of the national firm Troutman Pepper Hamilton Sanders said Governor Evers’ proposed separation of powers scheme improperly removed authorities the Legislature had held for decades without any proposed limits on his own office.
“My friends, despite being given multiple opportunities,” Tseytlin said, “were not willing or able to offer any limiting principle whatsoever to the revolution they would have the court unleash in this original action.”
The panel was skeptical of both proposed allocations of powers.
“It seems to me that your argument, if we accept it, would enshrine the idea that we don’t really have a separation of powers,” Justice Brian Hagedorn told Tseytlin. “That we accept the idea that drawing lines between the powers is not something we’re interested in doing other than to ensure that one power isn’t unchecked.”
Tseytlin pointed to the federal government as an example.
He argued that the U.S. Supreme Court’s 1982 decision in INS v. Chadha, which found that a statute allowing a one-house legislative veto of certain executive actions violated separation-of-powers doctrine, had effectively failed in preventing further legislative vetoes.
“We know that on the federal level this has completely failed,” he said. “80% of legislative veto provisions on the federal level were enacted after Chada.”
Justice Ann Walsh Bradley similarly asked Roth, “Your position seems to be black and white. Once the Legislature has passed the bill, hands off. Isn’t there some kind of nuance?”
“It seems to me that sort of limits your argument in certain circumstances,” the judge added.
Roth pointed to the Legislature’s remaining powers as part of that nuance, but conceded that success for his side would mean a major change in the state’s government. “I think it would be a lost cause to try to argue that our position would not have a significant impact on committees that exercise veto authority.”
He also got into an awkward exchange with Justice Rebecca Bradley when she asked whether the governor was also challenging the court’s prior holding that administrative rulemaking qualified as lawmaking.
“We will, but not today,” Roth replied, earning a “thanks for the forewarning” from Bradley along with pointed questioning as to why the governor was making this case before that one.
Roth said it came down to urgency. “This is a big problem today, and we cannot wait for a decision,” he said.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Biden revives Venezuela oil sanctions April 17, 2024 -
